12/30/87 the People of the State of v. Dennis Emerson

Appeal from the Circuit Court of Cook County, the Hon. James Bailey, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE WARD, Dissenting. CLARK, C.J., and SIMON, J., join in this Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

The defendant, Dennis Emerson, was convicted in a jury trial in the circuit court of Cook County of one count each of murder, attempted murder, and aggravated arson and of two counts of armed robbery. The same jury imposed the death sentence for the murder conviction. The defendant's execution was stayed pending direct review by this court. Ill. Const. 1970, art. VI, sec. 4(b); 107 Ill. 2d Rules 603, 609(a).

This is the second time the defendant has been convicted of the offenses here and sentenced to death; in an earlier appeal, the court reversed the defendant's convictions and granted him a new trial (People v. Emerson (1983), 97 Ill. 2d 487). The defendant's retrial was conducted in March 1985. The main evidence against the defendant was provided by Robert Ray, co-owner and operator of the Centaur Lounge, located at 1154 West 69th Street in Chicago. Ray testified that he was working at his lounge around noon on Sunday, August 12, 1979, when he received a telephone call from the defendant, who said that he was going to stop by later that day; Ray had known the defendant for several years. The defendant called again later that afternoon, saying that he had been delayed but that he would still come by. Ray closed the lounge at about 1:15 the following morning, and the defendant called around that time and said that he was on his way over. The defendant soon arrived with one of his brothers, Richard Jackson, and the three sat and talked in Ray's apartment, which was connected to the lounge and was located at the back of the building. Ray's girlfriend, Delinda Byrd, appeared some time later, and Ray introduced her to the others. Ray then left briefly to buy cigarettes at a store across the street -- the vending machine in the Centaur Lounge was out of his brand. Ray returned to the apartment and rejoined the others.

Ray testified that as he was opening his pack of cigarettes the defendant stood up, pulled out a gun, and ordered him and Byrd to lie on the floor. The defendant then bound their hands and feet with electrical cords that he pulled from lamps in the apartment and tavern. The defendant took Ray's keys and opened the cash register; Ray also told the defendant where his guns and jewelry were hidden, and the defendant found those items. The defendant searched Ray and Byrd and found on Byrd $600, which, according to Ray, she had planned to use in renting a new apartment. While this was going on, Richard Jackson kept a gun trained on Ray and Byrd, who were lying on the floor.

The defendant and Jackson then went into the kitchen of the apartment, and Jackson told the defendant to "use this," picking up a half pair of scissors or shears lying on Ray's desk. The defendant straddled Ray, lifted Ray's shoulder, and stabbed him two times in the chest with the blade. The defendant then went over to where Byrd was lying and stabbed her a number of times in the back. Following that, the defendant started a fire in the bedroom, and the defendant and Jackson threw Ray and Byrd into the burning room and shut the door. Ray testified that he heard the door knob being rattled and that he lay still until the noise died. He then untied his hands, hopped over to the bedroom window and raised it, and fell out into the airshaft between his building and the building next door, a drop of about eight feet.

Ray testified that Byrd also managed to get out of the bedroom and into the airshaft, and there he untied the rest of the bindings. Ray then climbed back into the bedroom and tried to open the door, but he found that it had been secured shut. Ray jumped back into the airshaft and opened the kitchen window, but the kitchen was engulfed with smoke and fire. Finally, Ray tried to get into a window that had an air conditioner in it. He stood on top of the air conditioner, kicked out the plasterboard surrounding it, and fell into the lounge. Ray ran out the front door and asked someone to call the fire department. Ray then went to the back of the building, where he was able to see Byrd through a narrow gap separating his building from the one next door.

Firefighters were unable to rescue Delinda Byrd from the airshaft, and her body was found there after the fire was extinguished. Medical testimony established that Byrd had been stabbed five times in her back, and she also had second-degree and third-degree burns over 90% of her body. The cause of her death was attributed to loss of blood from the stab wounds; the extensive burns were a contributing cause.

Following the fire, lengths of electrical cord were found in the bedroom of the apartment. The bedroom door was consumed in the fire, but a door knob and door lock assembly were found on the floor, and a coat hanger was next to them. No scissors or shears were found in the wreckage. Debris taken from the fire scene was tested for the presence of flammable hydrocarbons, and the results were negative.

Exculpatory evidence was provided by co-defendant Richard Jackson, who was the defendant's brother. Jackson implicated himself in the offenses, and he gave a description of events that largely paralleled Ray's testimony, with the exception that a man named Phillip Anderson, and not the defendant, was the person with Jackson at Ray's lounge. Jackson said that on August 12, 1979, he called the defendant to ask to borrow several hundred dollars. According to Jackson, the defendant said that the money could be obtained from Robert Ray, to whom the defendant had made a loan. The defendant then called Ray and said that his brother would be coming over. Jackson testified that he later went to Ray's lounge with a friend, Phillip Anderson. There, Jackson asked Ray for $300, but Ray would give him only $50. According to Jackson, Anderson then drew a gun, and when Delinda Byrd arrived, she and Ray were tied up. Jackson testified that Anderson stabbed Ray and Byrd and set the bedroom on fire; Anderson and Jackson then threw the two into the room. On cross-examination, Jackson conceded that he had not previously told this version of events to anyone.

The jury returned verdicts finding the defendant guilty of murder, attempted murder, armed robbery, and aggravated arson. A bifurcated sentencing hearing was then held. The parties stipulated that the defendant was born in 1951 and therefore was 18 years or older at the time of the offenses here. The jury found the defendant eligible for the death penalty because of his commission of the murder during the course of another felony, armed robbery. (See Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(6).) At the second part of the penalty hearing, the State presented certified copies of the defendant's convictions for various State and Federal offenses. That evidence showed that the defendant pleaded guilty to a number of armed robbery charges in Cook County circuit court in September 1971 and was sentenced to concurrent, indeterminate terms of four to eight years' imprisonment. In 1975, in a Federal prosecution, the defendant pleaded guilty to charges of receiving and possessing stolen bank notes and unlawful use of a weapon, and he was sentenced to an aggregate sentence of five years' imprisonment. In 1976 the defendant pleaded guilty in the circuit court of Cook County to a charge of armed robbery and was sentenced to an indeterminate term of five to eight years' imprisonment, to be served concurrently with the Federal sentence; the defendant was paroled from prison on July 24, 1979, several weeks before the offenses in this case were committed. No evidence in mitigation was presented, and the defendant was sentenced to death for his murder conviction. I

The defendant first argues that the trial Judge erred in denying his motion for automatic substitution of Judge. Judge Bailey presided at the defendant's first trial, and following this court's remand the case was returned to Judge Bailey's trial call on December 7, 1983. That day the defendant told the Judge that he was going to file a motion for automatic substitution of Judge, and he did so a week later, on December 14. Judge Bailey denied the motion, ruling that the motion was untimely because the case was not a new one but rather had been on his call for a long time.

The defendant's motion for substitution of Judge was made under section 114 -- 5(a) of the Code of Criminal Procedure of 1963, which provides:

"Within 10 days after a cause involving only one defendant has been placed on the trial call of a Judge the defendant may move the court in writing for a substitution of that Judge on the ground that such Judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another Judge not named in the motion. The defendant may name only one Judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two Judges as prejudiced." Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a).

The defendant argues that the cause on remand was a new proceeding for purposes of section 114 -- 5(a). In support of that argument, the defendant correctly observes that in several cases similar to this the court has entered nonprecedential, supervisory orders (see Ill. Const. 1970, art. VI, sec. 16) directing trial Judges to grant motions for automatic substitution. The defendant also relies on People v. McWilliams (1932), 350 Ill. 628, which considered a similar factual situation under an earlier statute.

In McWilliams the defendant had pleaded guilty to a charge of murder and had been sentenced to death; following this court's decision in an earlier appeal reversing the death sentence, the defendant filed a petition in the circuit court for a change of venue, as the automatic substitution provision was then called. In the petition, the defendant alleged "that he feared he would not receive a fair trial; that the presiding Judge, at the October, 1931, term of the circuit court, heard the testimony of witnesses and sentenced him to death; that the Supreme Court reversed the judgment; that the cause was redocketed and that by reason of these facts, the presiding Judge was prejudiced against him." (People v. McWilliams (1932), 350 Ill. 628, 630.) The circuit Judge denied the petition and, in resentencing the defendant, again imposed the death penalty. On appeal, the defendant argued that the trial Judge erred in denying his petition for change of venue. The State contended, however, that the defendant's petition was untimely. The State relied on section 25 of the Act, which prohibited a change of venue after the first term at which the request might have been made, unless the petitioner could show that the cause for which the petition was being brought had arisen or come to light since that time. This court rejected the State's argument, ruling that the defendant's request was timely. The court believed that "[t]he facts upon which the application was based arose largely after the reversal of the circuit court's first judgment and the remandment of the cause to that court" and therefore concluded that "[t]he application, based upon the facts alleged in the petition, could not have been made at an earlier term of the circuit court." (People v. McWilliams (1932), 350 Ill. 628, 633.) Therefore, the court concluded that the trial Judge should have granted the petition.

The current substitution-of-Judge statute is different in several important respects from the provisions in effect when McWilliams was decided. (See Ill. Rev. Stat. 1931, ch. 146, pars. 18 through 35.) At that time, as the court's Discussion indicates, a defendant and his attorney were required to submit supporting affidavits, and under the statute then in effect, all petitions for change of venue were termed "for cause." Moreover, there was no absolute time limit on filing the petition; section 25 provided, "No change of venue shall be granted after the first term at which the applicant might have been heard, unless he shall show that the causes for which a change is asked have arisen or come to this knowledge since the term at which the application might have been made." (Ill. Rev. Stat. 1931, ch. 146, par. 25.) In holding for the defendant in McWilliams, then, the court construed the petition for change of venue filed by the defendant following remand as resting on information that could not have been raised earlier. In contrast, the statute in effect at the time of trial in this case contained both a provision allowing the automatic substitution of Judge, section 114-5(a), under which the defendant's motion was filed, and a provision allowing a motion for cause, section 114-5(c). (Ill. Rev. Stat. 1979, ch. 38, pars. 114-5(a), (c) (current provisions at Ill. Rev. Stat., 1986 Supp., ch. 38, pars. 114-5(a), (d)).) A motion for automatic substitution under section 114-5(a) must be made within 10 days of the time the cause is put on the trial Judge's call; motions for cause are not similarly limited. In light of the differences between the current provisions and those considered in McWilliams, we believe that McWilliams affords scant support for the defendant's argument here.

We must still determine whether section 114 -- 5(a) required the granting of the defendant's motion in this case. Here, Judge Bailey presided at the defendant's first trial, and on remand the case was assigned to him again. Also, the case was tried under the same indictment as before. (Cf. People v. Smith (1963), 28 Ill. 2d 445 (defendant held entitled to automatic substitution on remand; new indictment obtained against him on remand).) This court has held that a request under section 114 -- 5(a) for automatic substitution of Judge must also be made before the trial Judge rules on a substantive matter in the case. (See People v. Norcutt (1970), 44 Ill. 2d 256, 262-63; People v. Speck (1968), 41 Ill. 2d 177, 187, modified (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2276.) Therefore, the motion may not be made in response to an adverse ruling on an issue. With that in mind, we believe that the appropriate interpretation of section 114 -- 5(a) is to construe the remand here as a continuation of the original proceedings, for purposes of this statutory provision. (See People v. Wolfe (1970), 124 Ill. App. 2d 349, 353-54.) In light of our Conclusion that the trial Judge did not err in denying the defendant's motion for automatic substitution of Judge, we need not consider the related argument that counsel's failure to specify the issue as a ground for relief in the post-trial motion constituted ineffective assistance of counsel. II

The defendant next argues that the trial Judge erred in failing to question the venire more thoroughly with respect to their attitudes concerning the presumption of innocence. During voir dire, defense counsel requested that the trial Judge ask the prospective jurors whether they understood that an accused is presumed to be innocent and whether they had any objection to that principle. The trial Judge declined to ask those questions, stating that he had sufficiently covered the subject in remarks he had made earlier to the venire as a whole. The defendant contends that under People v. Zehr (1984), 103 Ill. 2d 472, the trial Judge was required to ask the proposed questions concerning the presumption of innocence. Zehr is applicable here, for the defendant's trial occurred after the decision in that case. See People v. Britz (1986), 112 Ill. 2d 314, 318-19.

In Zehr, defense counsel requested that prospective jurors be asked whether they would have any hesitation in returning a not-guilty verdict if the State failed to prove the defendant's guilt beyond a reasonable doubt, whether they would view the defendant with disfavor if he did not testify, and whether they understood that an accused is presumed innocent and need not present any evidence in his own behalf but rather must be proved guilty beyond a reasonable doubt by the State. The trial Judge declined to ask those questions, and on appeal this court held that the requested inquiry should have been made. The court believed that a jury instruction at the end of trial would have "little curative effect" if a juror were prejudiced against one of those basic guarantees. People v. Zehr (1984), 103 Ill. 2d 472, 477.

The State contends that the trial Judge here fulfilled the Zehr requirement with respect to the presumption of innocence by remarks he made at the outset of voir dire. The trial Judge initially told the prospective jurors that they would be required to follow the law as he instructed them on it and asked the jurors whether they would be able to do that. The trial Judge said:

"So, I'm sure if you follow the instructions, you'll have no problem at all. But when I tell you the law is a particular way, that's the way it is.

As I tell all jurors, I am the boss of the law. So, considering that, is there any juror, including the jurors that are out there that will not follow the law as I give it to them? Anybody? When I tell you the law is a particular way, that's the law you must follow.

Will everybody do it? Are you absolutely sure? You might -- everybody said yes. I want you to remember that."

Later, the trial Judge told the prospective jurors:

"There's one thing I forgot to mention to you before and that is that as the Defendant sits in court at the present time, he is presumed innocent. This in a sense will remain with him throughout the case until or if the State proves him guilty beyond a reasonable doubt. So, if I were to take the first twelve whose names I first called out, told you to go back to the jury room, give me a verdict at this time, I'm sure all twelve of you would look at me and say what's that man talking about. How could we possibly go ahead and give a verdict at this time since we haven't heard anything. It would be absolutely wrong because if I asked you to give me a verdict at this time, your verdict would have to be not guilty since you have not heard anything.

Until the State proves him guilty beyond a reasonable doubt, he is not guilty, do you understand? It goes to the fundamental aspect of our law in the United States."

Zehr did not attempt to prescribe a precise formula for trial Judges to use in ascertaining jurors' prejudices or attitudes, and we believe that the purpose expressed in Zehr was satisfied here by the trial Judge's general admonition coupled with his subsequent Discussion of the presumption of innocence. In this case the trial Judge first told the jurors that they would be expected to follow the jury instructions, and he asked whether they would be able to do that. Later, the trial Judge told the jurors that the defendant was presumed innocent until the State proved his guilt beyond a reasonable doubt. To demonstrate the meaning of that principle, the trial Judge posited a hypothetical jury that was asked to determine the defendant's guilt or innocence before the State presented any evidence; in that event, the trial Judge explained, the jury would have to return a not-guilty verdict. On this record, we conclude that the trial Judge sufficiently complied with Zehr. III

The defendant also argues that he was denied the effective assistance of counsel because of a number of errors allegedly committed by trial counsel. To obtain a new trial or sentencing hearing on grounds of ineffective assistance, a defendant must show both a deficiency in counsel's performance and prejudice resulting from that. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525.) To establish actual prejudice resulting from an alleged deficiency in counsel's performance, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) In this regard, the defendant makes a broad attack on counsel's performance at trial. For the reasons set out below, we do not believe that the defendant was prejudiced by the errors complained of, taken individually or cumulatively.

First, the defendant contends that defense counsel presented a futile strategy at trial and, in his closing argument, conceded the defendant's guilt for the murder charge. In closing argument at trial, counsel told the jurors:

"Ladies and gentlemen, this case has become bizarre, in and out. A state of confusion during this trial as I suppose you can tell due to the fact that my client and I have disagreement -- disagreements about how the case should be tried. And, of course, as you heard, the testimony of his brother that you heard a few moments ago was something that no one heard, including myself and his [ i.e., Jackson's] own lawyer until the time he took the stand and gave it. But as long as this man's life is in my hands, I'm going to do my best to save his life.

I can still look you in the eye with all this evidence and say this. That I don't believe that two people went into that place that night with the idea to commit an armed robbery. And there's a difference between just a simple murder and felony murder. I know it sounds terrible, but in our law, there's a difference between when a man commits murder and when a man commits murder in the course of a felony.

If you have any doubts about the counts of armed robbery which will be submitted to you in this case with respect to Dennis Emerson, please, at this point, find him not guilty of armed robbery. It does make a difference. And as I say, I don't think that two men planning to go into a saloon, a tavern in this particular area and planning to commit a robbery, planning to take the weekend proceeds --

MR. BRADY [an assistant State's attorney]: I'm going to object at this point. Whether they planned it or not is not relevant. The ...

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